ORDER AND MEMORANDUM
AND NOW, to wit, this 26th day of March, 1999, upon consideration
of defendant Frank DeSumma's Motion to Suppress Statements and All
Physical Evidence (Document No. 64, filed January 29, 1999), and the
related submissions of the parties, following a Hearing and Oral
Argument on February 19, 1999, IT IS ORDERED, for the reasons set
forth in the accompanying Memorandum, that defendant Frank DeSumma's
Motion to Suppress Statements and All Physical Evidence is GRANTED
IN PART and DENIED IN PART, as follows:
1. That part of the Motion to Suppress which seeks to suppress the
statement of Frank DeSumma with respect to the presence of a weapon
2. That part of the Motion to Suppress which seeks to suppress the
weapon seized from the vehicle of defendant, Frank DeSumma, as a
result of his statement is DENIED.
I. FACTS AND PROCEDURAL HISTORY*fn1
On September 29, 1998, four Special Agents of the Federal Bureau
of Investigation ("FBI") arrested defendant Frank DeSumma pursuant
to a complaint and warrant.*fn2 On October 28, 1998, a Federal
grand jury returned a nine-count Indictment against DeSumma and
two co-defendants, Peter C. D'Amelio and George Delia, for
extortionate debt collection and weapons violations. On November 5,
1998, defendants pled not guilty to all counts of the Indictment.*fn3
On November 16, 1998, the Court denied defendant DeSumma's Motion for
On January 29, 1999, DeSumma filed a Motion to Suppress Statements
and All Physical Evidence; the government responded on February 17,
1999. On February 19, 1999, the Court held a hearing and oral argument
on the motion. The government called one witness, Special Agent S.J.
Giarrizzo of the FBI. The following facts surrounding defendant's
arrest were established.
On September 29, 1998, Special Agent Giarrizzo was part of a
four-person team of FBI agents charged with executing an arrest
warrant for the defendant. Special Agent Giarrizzo stated that to
his knowledge neither he nor the other members of the arrest team
had any paperwork with them other than the arrest warrant. The team
of agents went to Club Ricochet, a "gentleman's club" on Oxford
Valley Road in Lower Bucks County. While an agent entered the club
to find the defendant the rest of the team waited outside in the
club's parking lot.
After the agent used a "ruse" to get the defendant out of the club
and into the parking lot, at least two of the agents who waited in
the parking lot identified themselves as federal officers. Special
Agent Giarrizzo told defendant that he was under arrest. At this
point, the defendant was "just a few paces, maybe ten or fifteen
feet" from his car, and he was surrounded
by the arrest team. N.T. at 48. Although the arrest was
"instantaneous" with the defendant's emergence from the club, id.
at 55, in a few seconds' time he reached his car, at which time he
was stopped by Special Agent Giarrizzo. Defendant attempted to place
his hands on the hood of his vehicle, but he was told that that was
not necessary.*fn4 He was then handcuffed and subjected to a
pat-down search by Special Agent Giarrizzo. As the agent was
conducting the pat-down search, he asked the defendant whether he had
any weapons. Defendant responded that he had a weapon inside of his
car, indicated that his car was locked with a key-number lock system,
and provided the key number to unlock the car. While searching the
vehicle the agents found the gun. At no point in this sequence did
the agents advise the defendant of his Miranda rights. Special Agent
Giarrizzo stated that they searched the vehicle only because of
defendant's response to his question about weapons. N.T. at 60.
In the suppression motion, defendant argues that his statement to
Special Agent Giarrizzo that there was a weapon in his car was
illegally obtained because he had not been advised of his rights as
required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16
L.Ed.2d 694 (1966). It is defendant's position that the weapon
seized from his vehicle was obtained as a direct result of this
violation, and thus must be suppressed under Wong Sun v. United
States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).
The government argues that this case fits within the "public
safety exception" to Miranda established in New York v. Quarles,
467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984). In the
alternative, the government argues that the search of the car was
valid under the "automobile exception" to the search warrant
requirement established in Carroll v. United States, 267 U.S. 132,
45 S.Ct. 280, 69 L.Ed. 543 (1925).*fn5 The Court will address the
admissibility of the statement and the weapon in turn.
A. The Statement
Where a defendant seeks to suppress a post-arrest statement, the
government bears the burden of establishing by a preponderance of
the evidence that the statement was not the product of custodial
interrogation conducted in the absence of Miranda warnings.
Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473
(1986). In the absence of Miranda warnings, the government has the
burden of establishing that the interrogation fits within a
recognized exception to the Miranda rule. See id.
In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694
(1966), the Supreme Court examined a defendant's Fifth Amendment
right to be free from compelled self-incrimination in the context of
custodial interrogation; the Court has repeatedly held that certain
procedural safeguards were necessary to "dissipate the compulsion
inherent in custodial interrogation and, in so doing, guard against
abridgement of [a] suspect's Fifth Amendment rights." Moran v.
Burbine, 475 U.S. 412, 425, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986);
see Miranda, 384 U.S. at 468, 86 S.Ct. 1602. These safeguards include
certain rights that an accused a be informed of, and must waive,
before interrogation can commence:
He must be warned prior to any questioning that he
has the right to remain silent, that anything he says
can be used
against him in a court of law, that he has the right
to the presence of an attorney, and that if he cannot
afford an attorney one will be appointed for him prior
to any questioning if he so desires. Opportunity to
exercise these rights must be afforded to him
throughout the interrogation.
Miranda, 384 U.S. at 479, 86 S.Ct. 1602. Only if there is a knowing,
voluntary, and intelligent waiver of the rights expressed in the
warnings can police question a suspect without counsel being present
and introduce at trial any statements made during the interrogation.